01991052
02-24-2000
Gilbert F. Chesnov, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Gilbert F. Chesnov, )
Complainant, )
)
v. ) Appeal No. 01991052
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
This matter pertains to claims of agency noncompliance with the terms of
a May 6, 1996 settlement agreement into which the parties had entered.<1>
See 64 Fed. Reg.37,660 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.504(b)).
As a threshold matter, the Commission notes that this case is not
entirely clear. By way of background, therefore, we begin our analysis
with our prior decision in Chesnov v. Department of the Army, EEOC Appeal
No. 01965545 (October 31, 1997) (hereinafter �Chesnov I�). Thereafter,
we will address the matter raised in the instant appeal (hereinafter
�Chesnov II�).
Chesnov I
Chesnov I concerned complainant's claim that the agency had failed to
comply with a settlement agreement (SA, or the agreement) that he and
the agency had entered into on May 6, 1996. As we stated in Chesnov I,
the SA provided in pertinent part �that:
[The Director, AED] assures that [complainant's] rater considers input
from the team on those objectives relating to team performance prior to
issuing a performance appraisal to [complainant].[<2>]
[Complainant's] current performance appraisal will be rescinded and a
new appraisal will be initiated incorporating [complainant's] duties as
a coach and facilitator as well as that of a supervisor.
...
9. This agreement will be implemented within 45 days from the date of
signature.
The specific issues in Chesnov I pertained, in relevant part, to
complainant's claims that the agency had failed to comply with the
SA within the time period of 45 days, as well as with the provisions
regarding the rescission of the old performance appraisal (PA) and
issuance of the new PA; and the assurance that complainant's rater would
consider certain factors. The Commission determined that �[B]ecause
it is not clear when or if the agency has complied with the [SA], it
would be premature to consider whether the agency's admitted failure to
implement all of the terms of the [SA] within 45 days from the �date of
signature' constituted a material breach of the [SA].� Id.
Accordingly, the Commission decided, in Chesnov I, to remand this
matter for a supplemental investigation and ordered the agency to
provide �evidence showing that the old [PA] was rescinded and that the
new appraisal was actually issued.� The Commission further ordered
the agency to �issue a new decision [within 30 days of the date the
Commission's decision became final] finding that it has complied with the
agreement, specifically implement the terms of the agreement, or notify
[complainant] in writing that it has reinstated the settled complaint
and will process the complaint in accordance with EEOC Regulations.�
Chesnov II
We now turn to the present matter, which we denominate Chesnov II.
The agency case file does not reveal any action by the agency in
compliance with the Commission's Order in Chesnov I, in particular the
issuance of a new decision declaring that the agency was in compliance
with the SA at issue.<3> Instead, we find, in the present case, that
complainant filed an appeal on November 19, 1998, advising the Commission
that the agency had not responded to his letter, of October 22, 1998,
informing the agency that it had not complied with the SA at issue. In
his October 22, 1998 letter, complainant specifically requested the
agency to implement the provision that Senior Rater-1 �assures that
[complainant's] rater considers input from the team on those objectives
relating to team performance prior to issuing a performance appraisal to
[complainant].�<4>
In support of his present appeal, complainant appears to have provided,
in relevant part, �a reverse appraisal from my team leaders on those
objectives relating to team performance,� for the period July 1, 1997,
through June 30, 1998. We note, as complainant himself acknowledged
on appeal, that complainant's November 19, 1998 appeal is prior to
the end of the required waiting period of 35 days for the filing of an
appeal where a notice of noncompliance with an SA has been served on an
agency.<5> See 64 Fed. Reg. 37,660 (1999) (hereinafter referred to and
to be codified as 29 C.F.R. � 1614.504(b)). Nonetheless, in the interest
of judicial economy, the Commission will entertain complainant's present
appeal.
64 Fed. Reg. 37,656 (1999)(to be codified and hereinafter referred to
as EEOC Regulation 29 C.F.R. � 1614.504(a)) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with
regard to the terms of a settlement agreement, the Commission has
generally relied on the plain meaning rule. See Hyon v. United
States Postal Service, EEOC Request No. 05910787 (December 2, 1991).
This rule states that if the writing appears to be plain and unambiguous
on its face, its meaning must be determined from the four corners of
the instrument without resort to extrinsic evidence of any nature.
See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377
(5th Cir. 1984). The burden of demonstrating noncompliance with an SA
is on the complainant. See Moore v. Department of the Navy, EEOC Request
No. 05930694 (April 7, 1994).
In the instant case, the Commission finds that complainant has failed
to meet his burden of demonstrating agency noncompliance with the SA at
issue, i.e., the SA dated May 6, 1996. We find that complainant's appeal
does not in fact pertain to his claim of noncompliance in Chesnov I, as
it relates to his 1994-1995 PA. Instead, we find that complainant has
filed an appeal alleging noncompliance when Senior Rater-2 purportedly
did not consider input from complainant's team pertaining to complainant's
1997-1998 PA.
We find that the SA at issue does not by its terms expressly apply to
prospective PAs issued to complainant or by subsequent Senior Raters.
In this regard, we find that Senior Rater-1, who was the subject
of the SA at issue in Chesnov I, is not the same individual who is
complainant's Senior Rater involved with complainant's 1997-1998 PA
(i.e, Senior Rater-2) in Chesnov II. Even if the Commission were to
find, arguendo, in the present case, that the SA at issue covered
complainant's 1997-1998 PA by Senior Rater-2, we find complainant has
offered no evidence that Senior Rater-2 issued him a 1997-1998 PA that
did not consider complainant's team's input. The Commission finds,
in fact, to the contrary. We find, from our review of correspondence,
dated December 8, 1998, and sent to the agency's activity's Chief of its
EEO Office, that complainant conceded that Senior Rater-2 complied with
complainant's October 1, 1998 request.
We find that, in his December 8, 1998 correspondence, complainant stated,
in relevant part, that �[a]ction taken by [Senior Rater-2], in response to
[complainant's October 1, 1998 request for compliance with the SA] has
resulted in a re-evaluation of my 1997-1998 [PA] inclusive of one annual
and two special appraisals.� We further find that, in his December 8,
1998 correspondence, complainant requested that, based on the evaluation
by his team, all three appraisals should be upgraded and, inter alia,
complainant should receive an increased monetary award for performance.
However, the Commission finds complainant's requests to be beyond both
the scope of the SA at issue and present appeal.
Based on our review of the record in the present case, the arguments
on appeal, including those arguments not expressly addressed herein,
the Commission finds, in the present case, that complainant has failed
to sustain his burden of showing that the agency was not in compliance
with the May 6, 1996 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
February 24, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2For the purposes of the present decision, we will refer to the Director,
AED, as complainant's �Senior Rater-1.�
3The Commission notes, in this regard, that the agency issued a final
decision (FAD), dated August 13, 1998, on the merits of a complaint
filed by complainant in 1997, subsequent to the creation of the SA
at issue in the present case. The August 13, 1998 FAD, which made
reference to complainant's 1994-1995 appraisal, is not the subject of
complainant's appeal in the present case and, therefore, will not be
addressed in the Commission's decision in the instant case. We also
note that, on April 29, 1999, the agency sent the Compliance Officer,
responsible for monitoring the agency's compliance with the Commission's
Order in Chesnov I, what was purportedly a copy of complainant's revised
1994-1995 PA. For the reasons stated in our present decision, i.e.,
Chesnov II, the Commission will not address the issue of whether the
agency's purported revision of complainant's 1994-1995 PA is in compliance
with either the Commission's Order in Chesnov I, or, more specifically,
the May 6, 1996 SA.
4We also note a memorandum, dated October 1, 1998, from complainant
to his current Senior Rater (Senior Rater-2), wherein complainant
claimed, in pertinent part, that the agency had again not complied
with the SA at issue when complainant had received his 1997-1998 PA.
Complainant alleged that the provision purportedly breached pertained
to the assurance by Senior Rater-1 �that [complainant's] rater considers
input from the team on those objectives relating to team performance prior
to issuing a performance appraisal to [complainant].� In his October
1, 1998 correspondence, which correspondence complainant identified
as a �Request for Compliance with Negotiated Settlement Agreement,�
complainant averred that he had asked for his team leaders' evaluation
of certain relevant team objectives and asked Senior Rater-2 to include
that evaluation in complainant's 1997-1998 PA.
5Cf. 29 C.F.R. � 1614.504(b)'s requirement that a complainant �must
file an appeal within 30 days of his or her receipt of an agency's
determination� on the issue of the agency's alleged noncompliance.